Trial Procedure and Discovery in Asbestos Cases

Decisions in our library in which the court ruled on discovery: 2,075 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

New York

• Carlstrand v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof, and conflicting expert reports on whether chrysotile in vinyl asbestos floor tile can cause mesothelioma raise credibility and fact issues that cannot be resolved on papers.
• Carlstrand v. Mannington Mills (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in the plaintiff's proof, and conflicting expert opinions on general and specific causation raise credibility issues of fact that cannot be resolved on motion papers.
• Rosen v. VWR Int'l (In re New York City Asbestos Litigation) (2019). A note of issue is vacated only on a showing of extensive remaining discovery, unusual or unanticipated circumstances, or substantial prejudice. The NYCAL case management order lets discovery continue until ten days before a firm jury selection date.
• Carlstrand v. Domco Prods. of Texas (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment on causation by pointing to gaps in plaintiff's proof; it must first make a prima facie showing that its product did not contribute to the plaintiff's illness. Plaintiffs' late notice that they would pursue punitive damages, contrary to the case management order, supported dismissing that claim.
• Surace v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiffs' proof. Conflicting expert reports on general and specific causation, applying Parker and Cornell, raise fact issues that cannot be resolved on the papers.
• Djokic v. Steel Grip (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; it must show its product did not contribute to the disease, and conflicting expert opinions on general and specific causation raise fact issues. A consortium claim fails where the exposure preceded the marriage.
• Peralta v. Cyprus Amax Minerals Co. (In re New York City Asbestos Litigation) (2019). The original tortfeasor doctrine did not make Cyprus Amax Minerals Company answerable for the talc torts of its subsidiary Cyprus Mines, because a parent is not liable for a subsidiary's torts unless its control disregards the subsidiary's corporate independence, and plaintiffs showed no such control.
• Babcock v. Watts Water Technologies (In re New York City Asbestos Litigation) (2019). Plaintiffs need only make a non-frivolous showing of specific jurisdiction to defeat a CPLR 3211(a)(8) motion, and a defendant's lack of documentation of pre-merger assets and liabilities left successor-liability jurisdiction a non-frivolous theory. Leave to amend to add a defendant is freely given absent surprise or prejudice.
• DeRozieres v. Munaco Sealing Solutions (In re New York City Asbestos Litigation) (2019). Collateral estoppel applied because personal jurisdiction over Munaco and its status as successor to the New York company had already been decided against it in a prior case, and the newly offered contract did not change that analysis.
• Tavernite v. Taco (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must show its product could not have contributed to the injury, and conflicting testimonial evidence raising credibility issues cannot be resolved on motion papers.
• Alleyne v. Revlon (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's illness; pointing to gaps in the plaintiff's proof is not enough. New York does not recognize an independent cause of action for civil conspiracy to commit a tort.
• Godfrey v. Kaiser Gypsum Co. (In re New York City Asbestos Litigation) (2019). A defendant that preserved its personal jurisdiction defense in its answer is not subject to general jurisdiction in New York unless it is incorporated or has its principal place of business there, and specific jurisdiction under CPLR 302(a)(1) requires a nexus between the defendant's New York conduct and the claims, which plaintiffs did not show.
• English v. Colgate Palmolive Co. (In re New York City Asbestos Litigation) (2019). Under the NYCAL case management order, a case belongs on the accelerated (In-Extremis) docket if the plaintiff is terminally ill from an asbestos-related disease with under a year to live or has a mesothelioma diagnosis.
• Srica v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiffs' proof; it must make a prima facie showing that its product did not contribute to the disease, and conflicting expert reports on causation raise fact issues for trial.
• Goodheart v. Kohler Co. (In re New York City Asbestos Litigation) (2019). On an asbestos summary judgment motion, a plaintiff need only show facts from which the defendant's liability may be reasonably inferred, and conflicting testimony on where exposure occurred raises credibility issues for the trier of fact. An attorney's affirmation may be used to submit admissible evidence such as deposition testimony.
• Mercatante v. PACCAR (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment in an asbestos case by pointing to gaps in the plaintiff's proof; it must show its product could not have contributed to the disease, and conflicting evidence on exposure raises fact issues. A consortium claim fails where the injury-causing exposure occurred before the marriage.
• Jackson v. CertainTeed Corp. (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must unequivocally establish that its product could not have contributed to the plaintiff's injury; an unsupported affidavit that conflicts with the plaintiff's testimony raises credibility issues that cannot be resolved on a summary judgment motion.
• Linsky v. Mannington Mills (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; it must make a prima facie showing that its product did not contribute to the disease, and conflicting expert affidavits on causation raise credibility issues of fact that cannot be resolved on papers.
• Babcock v. CBS Corp. (In re New York City Asbestos Litigation) (2019). A nonparty served with a judicial subpoena bears the burden of showing a discovery request is improper, and speculative concerns about continuity of care, regulatory retention rules or future litigation do not excuse producing original pathology slides that are material and necessary. Sanctions under CPLR 2308(a) require evidence of willful noncompliance.
• Licul v. Mario DiBono Plastering Co. (In re New York City Asbestos Litigation) (2019). On summary judgment in an asbestos case, the plaintiff need only show facts from which the defendant's liability may be reasonably inferred, and a witness's inability to give exact details or contradictory testimony raises credibility issues for the trier of fact.
• Leavitt v. Rogers Co. (In re New York City Asbestos Litigation) (2019). A plaintiff opposing summary judgment need only show facts from which exposure to the defendant's product may reasonably be inferred, and a defendant's conclusory sales-record affidavit does not meet its prima facie burden. Specific jurisdiction under CPLR 302(a)(1) exists where the defendant's sales of its product into New York have an articulable nexus to the plaintiff's claim.
• Mantovi v. American Biltrite (In re New York City Asbestos Litigation) (2019). In toxic tort cases an expert must show the plaintiff's level of exposure and that the toxin can cause the injury. A defendant's expert reports on exposure level and fiber type can meet its prima facie burden, and a plaintiff's expert who makes no comparison to exposure levels in other studies and no fiber-type distinctions cannot raise a triable issue.
• Christy v. A.O. Smith Water Prods. Co. (In re New York City Asbestos Litigation) (2019). Under CPLR 602, consolidation is within the court's discretion and favored where common questions exist, unless the opposing party shows specific prejudice. Not every Malcolm factor must be present, so long as individual issues do not predominate.
• ALBIN v. AJAX MAGNETHERMIC CORPORATION (In re New York City Asbestos Litigation) (2019). Consolidation is within the trial court's discretion and is favored where common questions of law or fact exist, unless the opposing party shows specific prejudice. Not every Malcolm factor (work site, occupation, time of exposure, disease, living or deceased status) must be present, so long as individual issues do not predominate.
• Ombramonti v. Morse Diesel (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in the plaintiff's proof; plaintiff need only show facts and conditions from which the defendant's liability may be reasonably inferred, and conflicting testimony raises credibility issues for a jury.
• Knudsen v. Air & Liquid Systems Corp. (In re New York City Asbestos Litigation) (2019). Consolidation is favored where actions share common questions of law or fact, and the party opposing it must show specific prejudice to a substantial right. In asbestos cases the Malcolm factors guide the decision, not all need be present, and consolidation is proper if individual issues do not predominate.
• Figueroa v. Waukesha Cherry-Burrell (In re New York City Asbestos Litigation) (2019). Under the NYCAL Case Management Order, a Special Master's discovery ruling stands if the objecting party does not move by order to show cause within seven business days. Sanctions are not warranted without a showing that the party's noncompliance was willful or contumacious.
• Germain v. Johnson & Johnson (In re New York City Asbestos Litigation) (2019). Expert reports prepared after the note of issue should generally be excluded to avoid prejudice, but late disclosure is allowed where the delay was not willful, there is good cause, and the other side is not prejudiced.
• Stock v. Jenkins Bros. (IN the Matter of the Eighth Judicial District Asbestos Litigation) (Erie, 2019). A manufacturer has a duty to warn of dangers from the known and reasonably foreseeable use of its product with a third-party product needed for it to function as intended. Specific causation does not require precise quantification of dose, only evidence that the plaintiff was exposed to levels of the agent known to cause the harm.
• LaFLAIR v. Johnson & Johnson (2019). A removing defendant must show by clear and convincing evidence that there is no possibility the plaintiff can state a claim against the non-diverse defendant in state court, applying New York's lenient pleading standard. An affirmative defense such as the contract-specification defense that turns on unresolved facts does not meet that burden.
• Matter of Benson (Albany, 2019). A defense of lack of standing is waived if it is not raised in the answer or a timely motion to dismiss. In any event, a court-appointed estate administrator has a relationship sufficiently approaching privity with the attorney for the estate's initial administrator to bring a malpractice claim.
• Matter of Marzigliano v. Amchem Prods., Inc. (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiffs' proof; it must make a prima facie showing that its product did not contribute to the illness, and conflicting expert evidence on causation raises fact issues that cannot be resolved on motion papers.
• Matter of Miller v. Mo Maier Ltd. (3rd Dept., 2019). Where a represented party fails to use the Board's prescribed current form for an application for review, the Board may in its discretion deny review under 12 NYCRR 300.13, and a court will not disturb that decision absent abuse of discretion.
• Matter of New York City Asbestos Litig. (1st Dept., 2019). A plaintiff need not quantify exposure with exact mathematical precision, but must present evidence of an exposure level sufficient to cause the disease; an expert's opinion that unspecified "detectable" or "significant" levels caused mesothelioma is not enough.
• Yavner v. Fulton Boiler Works (Matter of New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's injury, and conflicting testimony about dates raises credibility issues that cannot be resolved on motion papers.
• Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation) (1st Dept., 2019). A jury's findings of exposure and recklessness stand if supported by legally sufficient evidence, but damages awards that deviate materially from reasonable compensation under CPLR 5501(c) must be reduced or retried.
• Fischer v. Burnham (Matter of New York City Asbestos Litigation) (2019). Leave to renew requires new facts and a valid excuse for not presenting them earlier; leave to reargue requires a showing that the court overlooked or misapplied facts or law. A defendant meets its summary judgment burden by showing the plaintiff cannot identify its products as a source of exposure.
• Alleyne v. Revlon (Matter of New York City Asbestos Litigation) (2019). Late expert disclosure under CPLR 3101(d) need not be precluded where the noncompliance was not willful and prejudice can be cured; the court weighed the equal prejudice to each side and cured it by adjourning the trial rather than excluding the report.
• Brown v. Consolidated Edison Co. of New York (Matter of New York City Asbestos Litigation) (1st Dept., 2019). Where the jury's share of fault assigned to a nonparty was most likely attributed to that party as the decedent's employer, who could not be sued directly because of a grave injury under the Workers' Compensation Law, CPLR 1602(4) lets that share be added to the defendant's, so the defendant is not protected by the 50% limit on its own share. A defendant that wants to limit that share must object to the verdict sheet and charges and propose a clarifying question.
• Miller v. AO Smith Water Prods. (2019). A corporation is subject to general jurisdiction only where it is incorporated or has its principal place of business, absent exceptional circumstances, and specific jurisdiction under CPLR 302(a) requires a connection between the claims and the defendant's New York contacts. A defendant preserves a personal jurisdiction objection by pleading it in its answer so as to fairly apprise the plaintiff.
• New York City Asbestos Litig (2019). A party relying on a seaman's release must show it was executed freely and with full understanding of his rights under Garrett's heightened admiralty standard, and where the release does not clearly cover a later mesothelioma and the record is silent or ambiguous on consideration and advice, summary judgment is inappropriate.
• Olson v. Brenntag N. AM. Inc. (2019). Due process bars punishing a defendant for harm to nonparties, so punitive-damages evidence must be tied to the conduct that harmed the plaintiff; post-injury conduct that could not have harmed plaintiffs is inadmissible, while out-of-state conduct and advertisements that are part of the same course of wrongful conduct may be admitted to show reprehensibility.
• Schwartz v. Advance Auto Supply (2019). A defendant seeking summary judgment in an asbestos case must show its product could not have contributed to the injury, and a plaintiff need only show facts from which the defendant's liability may be reasonably inferred; an uncertain store location raises a credibility question for the jury.
• Shanahan v. Kolmar Laboratories, Inc. (2019). A removing defendant must show by clear and convincing evidence, with ambiguities resolved for the plaintiff, that there is no possibility of a claim against the non-diverse defendant in state court; under New York's lenient pleading standard, general allegations of manufacture and a disputed contract-specifications defense did not meet that burden.
• Shulman v. Brenntag N. AM., Inc. (2019). Post-note-of-issue discovery is allowed under 22 NYCRR 202.21 where unusual or unanticipated circumstances arise, such as the late discovery of tissue blocks, and preclusion of an expert is not warranted where the other side cannot show surprise or prejudice.
• Temperino v. Amchem Prods. (2019). Conflicting expert reports on whether exposure caused lung cancer raise credibility issues that cannot be resolved on summary judgment. The court deferred ruling on the admissibility of plaintiff's experts' cumulative-exposure opinions, and a Frye hearing was not warranted before trial.
• Bucci v. Air & Liquid Sys. Corp. (2018). Cases may be joined for trial only where there is a plain identity of issues. Under the case management order, that requires good cause, at least three of the Malcolm factors, and the same type of disease among the plaintiffs.
• Cohen v. American Biltrite Inc. (2018). The scope of FDA regulation of talc is a question of law, not fact evidence, and the "generally recognized as safe" classification applies only to food additives and new drugs, so references to it (and the similar "generally regarded as safe") lack probative value for cosmetic talc.
• Grimes v. CBS Corporation (2018). Joint tortfeasors are not necessary parties under Rule 19(a), because a plaintiff need not sue all joint tortfeasors in one action and a defendant that pays more than its share can seek contribution. Efficiency in avoiding multiple lawsuits does not make absent parties necessary.
• Rothlein v. Johnson & Johnson (In re New York City Asbestos Litigation) (2018). A defendant seeking summary judgment in an asbestos case must show its product could not have contributed to the plaintiff's illness, and conflicting expert evidence on whether talc products contained asbestos and caused the disease raises fact issues for trial. Unsworn expert reports may be considered in opposition if other admissible evidence is also submitted, and a court may consider late sworn affidavits absent prejudice.